No. 45, 2005

An Act to amend laws, and to deal with transitional matters, in connection with the Australian Communications and Media Authority Act 2005, and for related purposes

[Assented to 1 April 2005]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Australian Communications and Media Authority (Consequential and Transitional Provisions) Act 2005.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3 and anything in this Act not

The day on which this Act receives the Royal Assent.

1 April 2005

elsewhere covered

by this table

2. Schedule 1

At the same time as section 6 of the Australian Communications and Media

1 July 2005

Authority Act 2005 commences.

3. Schedule 2

Immediately after the commencement of the provision(s) covered by table item 2.

1 July 2005

4. Schedule 3, items 1 and 2

The later of:

(a) the commencement of section 6 of the Australian Communications and Media Authority Act 2005; and

(b) immediately after the commencement of item 1 of Schedule 1 to the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004.

1 July 2005 (paragraph (a) applies)

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

5. Schedule 3, items 3 and 4

The later of:

(a) the commencement of section 6 of the Australian Communications and Media Authority Act 2005; and

(b) immediately after the commencement of item 2 of Schedule 1 to the Postal Industry Ombudsman Act 2005.

However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.

6 October 2006 (paragraph (b) applies)

6. Schedule 3,

At the same time as section 6 of the

1 July 2005

items 5 and 6

Australian Communications and Media

Authority Act 2005 commences.

7. Schedule 3, item 7

At the same time as section 6 of the

Australian Communications and Media

Authority Act 2005 commences. However, if item 10 of Schedule 1 to the Postal Industry Ombudsman Act 2005 has commenced on or before that time, the provision(s) do not commence at all.

1 July 2005

8. Schedule 3,

At the same time as section 6 of the

1 July 2005

item 8

Australian Communications and Media

Authority Act 2005 commences.

9. Schedule 3, items 9, 10 and 11 The later of:

(a) the commencement of section 6 of the Australian Communications and Media Authority Act 2005; and

(b) immediately after the commencement of item 11 of Schedule 1 to the Postal Industry Ombudsman Act 2005.

However, if item 11 of Schedule 1 to the Postal Industry Ombudsman Act 2005 does not commence, the provision(s) do not commence at all.

6 October 2006 (paragraph (b) applies)

10. Schedule 4 At the same time as section 6 of the 1 July 2005 Australian Communications and Media Authority Act 2005 commences.

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3 Schedule(s)

(1)

Each Act, and each regulation, that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

(2)

The amendment of any regulation under subsection (1) does not prevent the regulation, as so amended, from being amended or repealed by the Governor-General.

(3)

To avoid doubt, regulations amended under subsection (1) are taken to still be regulations.

Schedule 1—Amendments commencing on the establishment of the ACMA (other than general amendments to change abbreviated references)

Australian Broadcasting Corporation Act 1983

1 Subsection 3(1) (definition of ABA)

Repeal the definition.

2 Subsection 3(1)

Insert:

ACMA means the Australian Communications and Media

Authority.

3 Subparagraph 6(2)(a)(ii)

Omit “Australian Broadcasting Authority”, substitute “ACMA”.

4 Paragraph 8(1)(e)

Omit “Australian Broadcasting Authority”, substitute “ACMA”.

Australian Communications Authority Act 1997

5 The whole of the Act

Repeal the Act.

Broadcasting Services Act 1992

6 Paragraph 5(3)(a)

Repeal the paragraph.

7 Subsection 6(1) (definition of ABA)

Repeal the definition.

8 Subsection 6(1) (definition of ACA)

Repeal the definition.

9 Subsection 6(1)

Insert:

ACMA means the Australian Communications and Media Authority.

10 Subsection 6(1)

Insert:
Chair means the Chair of the ACMA.

11 Subsection 6(1) (definition of Chairperson)

Repeal the definition.

12 Subsection 6(1) (definition of Deputy Chairperson)

Repeal the definition.

13 Subsection 6(1) (definition of member)

Repeal the definition, substitute:
member means a member of the ACMA.

14 Section 93

Repeal the section.

15 Subsection 96(1)

Omit “other than a licence referred to in section 93”.

16 Subsections 96(3), (3A) and (3B)

Repeal the subsections.

17 Subsection 97(1)

Omit “93 or”.

18 Sections 98A, 98B and 98C

Repeal the sections.

19 Subsection 99(3)

Repeal the subsection.

20 Subsection 99(4)

Omit “otherwise than as a result of a direction under subsection (3)”.

31 Planning of broadcasting services bands

The Minister may, after consulting the ACMA, and in accordance with the spectrum plan, by written instrument:

(a)

designate a part of the spectrum as being primarily for broadcasting purposes; and

(b)

refer it to the ACMA for planning under Part 3 of the Broadcasting Services Act 1992.

(2)

If a subsection (1) designation is in force in relation to a particular part of the spectrum, the ACMA may make a written determination that licences, or specified kinds of licences, can be issued in specified circumstances in relation to that part of the spectrum, or in relation to a specified part or parts of that part of the spectrum.

(3)

In making or varying a subsection (2) determination, the ACMA must:

(a)

promote the objects, and have regard to the matters, described in section 23 of the Broadcasting Services Act 1992; and

(b)

promote the object of this Act, to the extent this is not

inconsistent with paragraph (a). This subsection has effect subject to subsection (4).

(4)

A subsection (2) determination (including as varied) must not be inconsistent with the spectrum plan.

(5)

Subject to subsections (3) and (4), the ACMA may, by written instrument, vary a subsection (2) determination.

(6)

The ACMA may, by written instrument, revoke a subsection (2) determination.

76 Subsection 32(2)

Repeal the subsection, substitute:

(2) However, if a frequency band plan relates to a frequency band that is:

(a)

within a part of the spectrum referred to the ACMA under subsection 31(1); and

(b)

wholly or partly covered by a frequency allotment plan prepared under section 25 of the Broadcasting Services Act 1992;

the frequency band plan must be consistent with the frequency allotment plan.

77 Subsection 36(5)

Omit “an agreement”, substitute “a determination”.

78 Paragraph 67(a)

Omit “section 53 of the Australian Communications Authority Act 1997”, substitute “section 60 of the Australian Communications and Media Authority Act 2005”.

79 Paragraph 100(2)(b)

Omit “an agreement made between the ACA and the ABA”, substitute “a determination”.

80 Section 102B

Repeal the section, substitute:

102B Datacasting transmitter licences

The ACMA must not issue a datacasting transmitter licence to a

person unless:

(a)

the person is a qualified company; and

(b)

if the issue of the licence is not under a price-based allocation system determined under section 106—the ACMA is satisfied that the issue of the licence would not result in a breach of any of the BSA control rules.

81 Subsections 106(6A), (6B) and (6C)

Repeal the subsections, substitute:

(6A) The ACMA must not issue a datacasting transmitter licence under a system so determined if the ACMA is satisfied that the issue of the licence would result in a breach of one or more of the BSA control rules.

82 Subparagraph 107(1)(c)(i)

Omit “section 53 of the Australian Communications Authority Act 1997”, substitute “section 60 of the Australian Communications and Media Authority Act 2005”.

83 Subparagraph 109(1)(b)(i)

Omit “section 53 of the Australian Communications Authority Act 1997”, substitute “section 60 of the Australian Communications and Media Authority Act 2005”.

84 Subparagraph 109A(1)(b)(i)

Omit “section 53 of the Australian Communications Authority Act 1997”, substitute “section 60 of the Australian Communications and Media Authority Act 2005”.

85 Subsection 114(5)

Repeal the subsection.

86 Paragraph 118(1)(c)

Omit “128C(2)”, substitute “128C(1)”.

87 Paragraph 118(1)(d)

Omit “or 128D(2)”, substitute “, or section 128D,”.

88 After subsection 122A(1)

Insert:

(1A) If, under section 50 of the Australian Communications and Media Authority Act 2005, the ACMA has delegated the power referred to in subsection (1) of this section to a Division of the ACMA, the following provisions have effect:

(a)

the Division may delegate the power to a body or organisation referred to in subsection (1) of this section;

(b)

subsections 52(2), (3), (4), (5) and (6) of the Australian Communications and Media Authority Act 2005 have effect as if the delegation by the Division were a delegation under section 52 of that Act.

89 Subsection 122A(2)

Omit “to the ACA for a final decision.”, substitute:

, for a final decision, to:

(a)

the ACMA, if the delegation to the delegate was under subsection (1); or

(b)

the Division that delegated the power, if the delegation to the delegate was under subsection (1A).

90 Subsection 122A(3)

Repeal the subsection, substitute:

(3) The powers conferred on the ACMA by subsection (1), and on a Division of the ACMA by subsection (1A), are in addition to the powers conferred by section 238 of this Act and by sections 50, 51 and 52 of the Australian Communications and Media Authority Act 2005.

radiocommunications transmitter under the licence; has contravened a condition of the licence set out in paragraph 109A(1)(g), (ga), (h), (i) or (j) or subsection 109A(2) or (3), the ACMA may, by written notice given to the licensee, suspend the licence.

(2)

The notice of suspension must specify, as the day on which the suspension ceases, the first day after the end of the period specified in the notice.

(3)

The ACMA may, at any time, by written notice given to the licensee, revoke the suspension of the licence.

(4)

Section 127 applies to a suspension under this section in a corresponding way to the way in which it applies to a suspension under section 126.

128D Cancelling datacasting transmitter licences

If the ACMA is satisfied that:

(a)

the licensee of a datacasting transmitter licence; or

(b)

a person authorised by the licensee to operate a

radiocommunications transmitter under the licence; has contravened a condition of the licence set out in paragraph 109A(1)(g), (ga), (h), (i) or (j) or subsection 109A(2) or (3), the ACMA may, by written notice given to the licensee, cancel the licence.

The ACMA must not transfer a datacasting transmitter licence to a person unless:

(a)

the person is a qualified company; and

(b)

the ACMA is satisfied that the transfer would not result in a breach of any of the BSA control rules.

99 Paragraph 146(2)(b)

Repeal the paragraph, substitute:

(b) the appropriate charge fixed by determination made under section 60 of the Australian Communications and Media Authority Act 2005 has been paid.

100 Subsection 188A(15) (definition of radiocommunications community)

Omit “Australian Communications Authority Act 1997”, substitute

“Australian Communications and Media Authority Act 2005”.

101 Subsection 238(1)

Repeal the subsection, substitute:

(1) The powers conferred on the ACMA by subsection (2), and on a Division of the ACMA by subsection (3), are in addition to the powers conferred by sections 50, 51 and 52 of the Australian Communications and Media Authority Act 2005.

102 Subsection 238(3)

Repeal the subsection, substitute:

(3) If, under section 50 of the Australian Communications and Media Authority Act 2005, the ACMA has delegated the power referred to in subsection (2) to a Division of the ACMA, the following provisions have effect:

(a)

the Division may delegate the power to an authority of the Commonwealth;

(b)

subsections 52(2), (3), (4), (5) and (6) of the Australian Communications and Media Authority Act 2005 have effect as if the delegation by the Division were a delegation under section 52 of that Act.

103 At the end of section 255

Add:

(3) Nothing in this Part applies to an inquiry held by the ACMA under another Act.

104 Subsection 258(3)

Omit “section 53 of the Australian Communications Authority Act 1997”, substitute “section 60 of the Australian Communications and Media Authority Act 2005”.

105 Paragraph 261(3)(a)

Omit “Chairman”, substitute “Chair”.

106 Paragraph 261(3)(b)

Repeal the paragraph, substitute:

(b) if the functions or powers of the ACMA in relation to the hearing have been delegated to a person, or to a Division of the ACMA, under section 50, 51 or 52 of the Australian Communications and Media Authority Act 2005—that person or Division.

107 Subsection 261(4)

Omit “Chairman”, substitute “Chair”.

108 Subsection 261(5)

Repeal the subsection, substitute:

(5) If the Chair is not present at a hearing, the hearing is to be presided over by:

(a)

if paragraph (3)(a) applies—the member, specified in an instrument under that paragraph, as the member who is to preside at the hearing; or

(b)

if paragraph (3)(b) applies and the delegation is to a person— that person; or

(c)

if paragraph (3)(b) applies and the delegation is to a Division of the ACMA—a member of the Division chosen by the Division.

109 Paragraph 263(1)(b)

Repeal the paragraph, substitute:

(b) the appropriate charge fixed by determination made under section 60 of the Australian Communications and Media Authority Act 2005 has been paid.

the Telecommunications (Consumer Protection and Service Standards) Act 1999; or

(c)

the Spam Act 2003; or

(d)

Part XIC of the Trade Practices Act 1974; or

(e)

section 12 of the Australian Communications and Media Authority Act 2005, in so far as that section relates to the ACMA’s telecommunications functions.

134 Section 7 (definition of Chairman)

Repeal the definition.

135 Paragraph 78(1)(a)

Omit “section 53 of the Australian Communications Authority Act 1997”, substitute “section 60 of the Australian Communications and Media Authority Act 2005”.

136 Subsection 84(3)

Omit “section 53 of the Australian Communications Authority Act 1997”, substitute “section 60 of the Australian Communications and Media Authority Act 2005”.

137 Subsection 136(3)

Omit “section 53 of the Australian Communications Authority Act 1997”, substitute “section 60 of the Australian Communications and Media Authority Act 2005”.

138 Section 392

Omit “section 53 of the Australian Communications Authority Act 1997”, substitute “section 60 of the Australian Communications and Media Authority Act 2005”.

139 Subsection 403(3)

Omit “section 53 of the Australian Communications Authority Act 1997”, substitute “section 60 of the Australian Communications and Media Authority Act 2005”.

140 Section 425

Omit “section 53 of the Australian Communications Authority Act 1997”, substitute “section 60 of the Australian Communications and Media Authority Act 2005”.

141 Subsection 440(4)

Omit “section 12 of the Australian Communications Authority Act 1997”, substitute “section 14 of the Australian Communications and Media Authority Act 2005”.

142 After subsection 441(1)

Insert:

(1A) If, under section 50 of the Australian Communications and Media Authority Act 2005, the ACMA has delegated a function or power referred to in subsection (1) to a Division of the ACMA, the following provisions have effect:

(a)

the Division may delegate the function or power to a person;

(b)

subsections 52(2), (3), (4), (5) and (6) of the Australian Communications and Media Authority Act 2005 have effect as if the delegation by the Division were a delegation under section 52 of that Act.

143 Subsection 441(2)

Omit “Subsection (1) does”, substitute “Subsections (1) and (1A) do”.

144 Subsection 441(3)

Omit “of the ACA.”, substitute:

of:

(a)

the ACMA, if the delegation to the delegate was under subsection (1); or

(b)

the Division that delegated the power, if the delegation to the delegate was under subsection (1A).

145 Subsection 441(4)

Repeal the subsection, substitute:

(4) The powers conferred on the ACMA by subsection (1), and on a Division of the ACMA by subsection (1A), are in addition to the powers conferred by sections 50, 51 and 52 of the Australian Communications and Media Authority Act 2005.

146 Subsection 442(3)

Omit “section 53 of the Australian Communications Authority Act 1997”, substitute “section 60 of the Australian Communications and Media Authority Act 2005”.

147 Paragraph 457(1)(a)

Omit “section 53 of the Australian Communications Authority Act 1997”, substitute “section 60 of the Australian Communications and Media Authority Act 2005”.

148 Subsection 465(5)

Omit “section 53 of the Australian Communications Authority Act 1997”, substitute “section 60 of the Australian Communications and Media Authority Act 2005”.

149 After subsection 467(1)

Insert:

(1A) If, under section 50 of the Australian Communications and Media Authority Act 2005, the ACMA has delegated a power referred to in subsection (1) to a Division of the ACMA, the following provisions have effect:

(a)

the Division may delegate the power to a body corporate;

(b)

subsections 52(2), (3), (4), (5) and (6) of the Australian Communications and Media Authority Act 2005 have effect as if the delegation by the Division were a delegation under section 52 of that Act.

150 Subsection 467(2)

Omit “of the ACA.”, substitute:

of:

(a)

the ACMA, if the delegation to the delegate was under subsection (1); or

(b)

the Division that delegated the power, if the delegation to the delegate was under subsection (1A).

151 Subsection 467(3)

Omit “the ACA”, substitute “the ACMA or the Division (as the case

requires)”.

152 At the end of section 467

Add:

(4) The powers conferred on the ACMA by subsection (1), and on a Division of the ACMA by subsection (1A), are in addition to the powers conferred by sections 50, 51 and 52 of the Australian Communications and Media Authority Act 2005.

153 Subsection 489(3)

Omit “section 53 of the Australian Communications Authority Act 1997”, substitute “section 60 of the Australian Communications and Media Authority Act 2005”.

154 Paragraph 491(3)(a)

Omit “Chairman”, substitute “Chair”.

155 Paragraph 491(3)(b)

Repeal the paragraph, substitute:

(b) if the functions or powers of the ACMA in relation to the hearing have been delegated to a person, or to a Division of the ACMA, under section 50, 51 or 52 of the Australian Communications and Media Authority Act 2005—that person or Division.

156 Subsection 491(4)

Omit “Chairman”, substitute “Chair”.

157 Subsection 491(5)

Repeal the subsection, substitute:

(5) If the Chair is not present at a hearing, the hearing is to be presided over by:

(a)

if paragraph (3)(a) applies—the member, specified in an instrument under that paragraph, as the member who is to preside at the hearing; or

(b)

if paragraph (3)(b) applies and the delegation is to a person— that person; or

(c)

if paragraph (3)(b) applies and the delegation is to a Division of the ACMA—a member of the Division chosen by the Division.

158 Clause 23 of Schedule 3

Omit “section 53 of the Australian Communications Authority Act 1997”, substitute “section 60 of the Australian Communications and Media Authority Act 2005”.

159 Subclause 25(5) of Schedule 3

Omit “section 53 of the Australian Communications Authority Act 1997”, substitute “section 60 of the Australian Communications and Media Authority Act 2005”.

but does not include a right, power, privilege or immunity conferred by an Act or by regulations or other subordinate legislation made under an Act.

assets official, in relation to an asset other than land, means the person or authority who, under a law of the Commonwealth, a State or a Territory, under a trust instrument or otherwise, has responsibility for keeping a register in relation to assets of the kind concerned.

financial liability means a liability to pay a person an amount, where the amount, or the method for working out the amount, has been determined.

Imposition Act means any of the following Acts:

(a)

the Datacasting Charge (Imposition) Act 1998;

(b)

the Radiocommunications (Receiver Licence Tax) Act 1983;

(c)

the Radiocommunications (Spectrum Licence Tax) Act 1997;

(d)

the Radiocommunications (Transmitter Licence Tax) Act 1983;

(e)

the Radio Licence Fees Act 1964;

(f)

the Telecommunications (Carrier Licence Charges) Act 1997;

(g)

the Telecommunications (Numbering Charges) Act 1997;

(h)

the Television Licence Fees Act 1964.

land means any legal or equitable estate or interest in real property, whether actual, contingent or prospective.

land registration official, in relation to land, means the Registrar of Titles or other proper officer of the State or Territory in which the land is situated.

liability means any liability, duty or obligation, whether actual, contingent or prospective, but does not include a liability, duty or obligation imposed by an Act or by regulations or other subordinate legislation made under an Act.

transition time means the commencement of section 6 of the ACMA Act.

(2) Subject to subitem (1), an expression used in this Schedule that is also used in the ACMA Act has the same meaning in this Schedule as it has in that Act.

Part 2—Assets, liabilities and legal proceedings

2 Vesting of assets of ABA and ACA

(1)

This item applies to the assets of the ABA and of the ACA immediately before the transition time.

(2)

At the transition time, the assets to which this item applies cease to be assets of the ABA or the ACA and become assets of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to these assets.

3 Vesting of liabilities of ABA and ACA

(1)

This item applies to the liabilities of the ABA and of the ACA immediately before the transition time.

(2)

At the transition time, the liabilities to which this item applies cease to be liabilities of the ABA or the ACA and become liabilities of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to these liabilities.

4 Certificates relating to vesting of land

(1)

This item applies if:

(a)

any land vests in the Commonwealth under this Part; and

(b)

there is lodged with a land registration official a certificate that:

(i)

is signed by the Minister; and

(ii)

identifies the land, whether by reference to a map or otherwise; and

(iii) states that the land has become vested in the Commonwealth under this Part.

(2)

The land registration official may:

(a)

register the matter in a way that is the same as, or similar to, the way in which dealings in land of that kind are registered; and

(b)

deal with, and give effect to, the certificate.

5 Certificates relating to vesting of assets other than land

(1)

This item applies if:

(a)

any asset other than land vests in the Commonwealth under this Part; and

(b)

there is lodged with an assets official a certificate that:

(i)

is signed by the Minister; and

(ii)

identifies the asset; and

(iii) states that the asset has become vested in the Commonwealth under this Part.

(2)

The assets official may:

(a)

deal with, and give effect to, the certificate as if it were a proper and appropriate instrument for transactions in relation to assets of that kind; and

(b)

make such entries in the register as are necessary having regard to the effect of this Part.

6 Substitution of ACMA or Commonwealth as a party to pending proceedings

(1)

Subject to subitem (2), if any proceedings to which the ABA or the ACA was a party were pending in any court or tribunal immediately before the transition time, the ACMA is substituted for the ABA or the ACA, from the transition time, as a party to the proceedings.

(2)

However, if the proceedings were, or were related to:

(a)

proceedings taken by the ABA or the ACA in the exercise of a right that is vested in the Commonwealth by item 2; or

(b)

proceedings taken against the ABA or the ACA in respect of a liability that is vested in the Commonwealth by item 3;

the Commonwealth is substituted for the ABA or the ACA, from the transition time, as a party to the proceedings.

(3) The regulations may determine that one of subitems (1) and (2), rather than the other of those subitems, applies in relation to a particular proceeding or a class of proceedings.

7 Transfer of custody of ABA and ACA records

(1)

This item applies to any records or documents that were in the custody of the ABA or the ACA immediately before the transition time.

(2)

The records and documents are to be transferred into the custody of the ACMA at or after the transition time.

Part 3—References to, and things done by or in relation to, ABA or ACA

8 References in instruments to ABA or ACA

(1)

This item applies to an instrument if it:

(a)

was in force immediately before the transition time; and

(b)

is an instrument covered by one or more of the following subparagraphs:

(i)

an instrument that was made by the ABA or ACA; or

(ii)

an instrument to which the ABA or ACA was a party; or

(iii) an instrument that was given to, or in favour of, the ABA or ACA; or

(iv)

an instrument under which any right or liability accrues or may accrue to the ABA or ACA; or

(v)

any other instrument in which a reference is made to the ABA or ACA.

(2)

Subject to subitem (3), an instrument to which this item applies continues to have effect from the transition time as if a reference in the instrument to the ABA or ACA (whether the reference is in that abbreviated form or is in the full name of that Authority) were a reference to the ACMA.

(3)

However, if:

(a)

the reference is to the ABA or the ACA as an entity with a particular power or capacity (for example, as party to a contract or the holder of real or personal property); and

(b)

the ACMA does not have that power or capacity (see sections 12 and 18 of the ACMA Act);

the reference has effect from the transition time as if it were a reference to the Commonwealth.

(4)

The regulations may determine that one of subitems (2) and (3), rather than the other of those subitems, applies in relation to a particular reference or class of references.

(5)

For the purposes of this item, an instrument:

(a)

includes, but is not limited to, a regulation, declaration, determination, direction, licence, application or standard; but

(b)

does not include an Act, or an instrument made under an Imposition Act.

9 Transfer of appropriated money

(1)

For the purposes of the operation of an Appropriation Act after the commencement of this Schedule, references to the Australian Broadcasting Authority or the Australian Communications Authority are to be read as references to the Australian Communications and Media Authority.

(2)

In this item:

Appropriation Act means an Act appropriating money for expenditure out of the Consolidated Revenue Fund.

10 Things done by, or in relation to, ABA or ACA etc.

(1)

This item applies to a thing done by, or in relation to, the ABA or the ACA under:

(a)

a provision (the authorising provision) of an Act, other than:

(ii)

a provision of an Imposition Act; or

(ii)

a provision that is repealed by this Act; or

(b)

a provision (the authorising provision) of an instrument made under a provision of an Act, other than:

(ii)

a provision of an Imposition Act; or

(ii)

a provision that is repealed by this Act.

(2)

Subject to subitem (3), the thing done has effect from the transition time as if it had been done by, or in relation to, the ACMA under the authorising provision as in force from the transition time. However this is not taken to change the time at which the thing was actually done.

(3)

However if the thing done is a thing of a kind that, under the authorising provision as in force from the transition time, cannot be done by or in relation to the ACMA, the thing has effect from the transition time as if it had been done by or in relation to the Commonwealth.

(4)

The regulations may:

(a)

provide that this item does not apply to a specified class or classes of things done; or

(b)

determine that one of subitems (2) and (3), rather than the other of those subitems, applies in relation to a particular thing done, or class of things done; or

(c)

clarify how a thing has effect as mentioned in subitem (2) or (3).

11 Continuation of inquiries, investigations and hearings

(1)

If the ABA or ACA (however constituted) was holding or conducting an inquiry, investigation or hearing (the proceeding) that had not ended or been discontinued by the transition time, the ACMA is to continue the proceeding in accordance with the provisions as amended by this Act (the relevant provisions) that apply in relation to that kind of inquiry, investigation or hearing.

(2)

The ACMA is to take whatever action, under or for the purposes of the relevant provisions, as is necessary for the continuation of the proceeding. However this does not limit any power or discretion that the ACMA would otherwise have to discontinue such a proceeding.

Note: An example of an action that the ACMA may have to take is to determine how the ACMA is to be constituted for the purposes of the proceeding.

(3)

Anything done for the purposes of the proceeding before the transition time is taken to have been done for the purposes of the proceeding as continued in accordance with this item.

(4)

This item has effect despite item 10, but does not otherwise limit the generality of that item.

12 Continued effect of certain instruments made under the repealed provisions

(1) An instrument:

(a)

made or given under the Australian Communications Authority Act 1997 and specified in the following table; and

(b)

in force immediately before the transition time;

continues to have effect from the transition time as if it were made or given under the corresponding provision of the ACMA Act specified in the table.

Instruments made under Australian Communications Authority Act 1997 that continue to have effect

Item This instrument made or given continues to have effect as if it
under this provision of the were made or given under this
Australian Communications provision of the ACMA Act...
Authority Act 1997...

1 instruction under paragraph 8(1)(aa) paragraph 11(1)(a)

2 instruction under paragraph 8(1)(ab) paragraph 11(1)(b)

3 arrangement under paragraph paragraph 55(1)(a)
41(1)(a)

4 arrangement under paragraph paragraph 55(1)(b)
41(1)(b)

5 direction given under subsection subsection 59(5)
52(3)

6 determination under subsection subsection 60(1)
53(1)

7 determination under subsection subsection 64(1)
54(1)

(2)

A determination in force under clause 61 of Schedule 4 to the Broadcasting Services Act 1992 immediately before the transition time has effect from the transition time as if it were a determination under subsection 60(1) of the ACMA Act.

(3)

A designation or reference in force under subsection 31(1) of the Radiocommunications Act 1992 immediately before the transition time has effect from the transition time as if it were a designation or reference under subsection 31(1) of that Act as amended by Schedule 1 to this Act.

(4)

An agreement in force under subsection 31(2) of the Radiocommunications Act 1992 immediately before the transition time has effect from the transition time as if it were a determination under subsection 31(2) of that Act as amended by Schedule 1 to this Act.

(5)

A suspension in force under subsection 128C(2) of the Radiocommunications Act 1992 immediately before the transition time has effect from the transition time as if it were a suspension under subsection 128C(1) of that Act as amended by Schedule 1 to this Act.

Note: Instruments made by the ABA or ACA under provisions of Acts that are amended (rather than repealed) by this Act will continue to have effect as a result of item 10.

13 Saving advisory committees etc.

(1) An advisory committee:

(a)

established under section 51 of the Australian Communications Authority Act 1997; and

(b)

in existence immediately before the transition time;

continues in existence from the transition time as if it were established under subsection 58(1) of the ACMA Act.

(2)

The persons on the committee immediately before the transition time are taken to have been appointed at the transition time under subsection 58(2) of the ACMA Act.

(3)

A direction:

(a)

given to the committee under subsection 51(3) of the Australian Communications Authority Act 1997; and

(b)

in force immediately before the transition time;

continues to have effect from the transition time as if it were given to the committee under subsection 58(4) of the ACMA Act.

Part 4—Reporting obligations

14 First annual report for ACMA

(1)

This item applies if the transition time is in April, May or June of a financial year (the first year).

(2)

Section 57 of the ACMA Act does not apply in relation to the first year.

(3)

That section applies in relation to the next financial year (the next year) as if the next year also included the period:

(a)

starting at the transition time; and

(b)

ending at the end of the first year.

15 Final annual report for ABA and ACA

ACMA must prepare final annual reports for ABA and ACA

(1)

For the transitional reporting period (see whichever of subitems (4) and

(5) applies), the ACMA must prepare the report referred to in section 9 of the Commonwealth Authorities and Companies Act 1997 for the ABA and the ACA.

(2)

A report for the ACA must include the matters described in section 50 of the Australian Communications Authority Act 1997 as in force immediately before the transition time.

(3)

The obligation under section 9 of the Commonwealth Authorities and Companies Act 1997 imposed on the final directors of the ABA and the ACA to prepare an annual report for the transitional reporting period is satisfied if the report is prepared by the ACMA.

Transitional reporting periods

(4)

If the transition time is on 1 July 2005, the financial year that started on 1 July 2004 is the transitional reporting period.

(5)

If the transition time is in the financial year that started on 1 July 2004, the period that:

(a)

started at the beginning of that financial year; and

(b)

ended immediately before the transition time;

is the transitional reporting period.

Miscellaneous

(6) For the purposes of this item, references to a financial year in:

(a)

section 50 of the Australian Communications Authority Act 1997; and

(a)

section 9 of the Commonwealth Authorities and Companies Act 1997;

are taken to be references to the transitional reporting period.

(7) In this item:

final director means a person who was a director (as defined in the Commonwealth Authorities and Companies Act 1997) of the ABA or ACA immediately before the transition time.

Part 5—Miscellaneous

16 Protecting ACA’s names and symbols

Despite the repeal of the Australian Communications Authority Act 1997 by Schedule 1, section 55 of that Act, and regulations for the purposes of that section, as in force immediately before the transition time continue to apply in relation to a protected name and a protected symbol (within the meaning of that section), until the end of:

(a)

12 months after the transition time; or

(b)

if a longer period is specified in the regulations—that longer period;

as if:

(c)

that Act had not been repealed; and

(d)

the reference in subsection 55(2A) of that Act to the ACA were a reference to the ACMA; and

(e)

any consent given under subsection 55(2A) of that Act that was in force immediately before the transition time had been given by the ACMA.

17 Exemption from stamp duty and other State or Territory taxes

(1)

No stamp duty or other tax is payable under a law of a State or a Territory in respect of an exempt matter, or anything connected with an exempt matter.

(2)

For the purposes of this item, an exempt matter is:

(a)

the vesting of an asset or liability under this Schedule; or

(b)

the operation of this Schedule in any other respect.

(3)

The Minister may certify in writing:

(a)

that a specified matter is an exempt matter; or

(b)

that a specified thing was connected with a specified exempt matter.

(4)

In all courts, and for all purposes (other than for the purposes of criminal proceedings), a certificate under subitem (3) is prima facie evidence of the matters stated in the certificate.

18 Constitutional safety net

(1) If:

(a)

a provision of this Schedule would result in an acquisition of property; and

(b)

the provision would not be valid, apart from this section, because a particular person has not been compensated;

the Commonwealth must pay that person:

(c)

a reasonable amount of compensation agreed on between the person and the Commonwealth; or

(d)

failing agreement—a reasonable amount of compensation determined by a court of competent jurisdiction.

(2)

Any damages or compensation recovered, or other remedy given, in a proceeding begun otherwise than under this item must be taken into account in assessing compensation payable in a proceeding begun under this item and arising out of the same event or transaction.

(3)

In this item:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

19 Certificates taken to be authentic

A document that appears to be a certificate made or issued under a particular provision of this Schedule:

(a)

is taken to be such a certificate; and

(b)

is taken to have been properly given;

unless the contrary is established.

20 Delegation by Minister

(1)

The Minister may, by writing, delegate all or any of his or her powers and functions under this Schedule to:

(a)

the Secretary of the Department; or

(b)

an SES employee, or acting SES employee, in the Department.

(2)

In exercising powers or functions under a delegation, the delegate must comply with any directions of the Minister.

21 Regulations

(1)

The Governor-General may make regulations prescribing matters:

(a)

required or permitted by this Schedule to be prescribed; or

(b)

necessary or convenient to be prescribed for carrying out or giving effect to this Schedule.

(2)

In particular, regulations may be made prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to:

(a)

the amendments or repeals made by this Act; or

(b)

the enactment of this Act or the ACMA Act.

[Minister’s second reading speech made in— House of Representatives on 2 December 2004 Senate on 7 March 2005]